University of Southern California Amended and Restated Operating Agreement for A Business Paper Hello!The task is enclosed. The Assignment itself should co

University of Southern California Amended and Restated Operating Agreement for A Business Paper Hello!The task is enclosed. The Assignment itself should consist of 4 – 7 pages (front page is not included). 12 font, Times New Roman, double-spaced. EX-3.4.1 3 a2197112zex-3_41.htm EXHIBIT 3.4.1
EXHIBIT 3.4.1
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
SEED HOLDING, LLC,
a Manager-Managed Limited Liability Company
(Effective as of December 31, 2009)
A.
1.
PRELIMINARY PROVISIONS
Effective Date
The Operating Agreement of SEED HOLDING, LLC. was originally effective as of June 27, 2008, having been adopted by the original member. This Amended and Restated Operating Agreement (the “Operating Agreement”) is effective as of December 31, 2009, having been signed by the members whose signatures appears at the end of this Operating
Agreement.
2.
Formation
This limited liability company (“LLC”) was formed by filing Articles of Organization in the office of the Nevada Secretary of State (the “state LLC filing office”) on June 27, 2008. A copy of this organizational document has been placed in the LLC’s records book.
3.
Name
The formal name of this LLC is as stated above. However, this LLC may do business under a different name by complying with the state’s fictitious or assumed business name statutes and procedures.
4.
Registered Office and Registered Agent
The registered office address of this LLC is:
1000 East William Street, Suite 204
Carson City, NV 89701
The registered agent of this LLC is:
National Registered Agents Inc. of Nevada
The registered agent and/or office of this LLC may be changed from time to time as the members may see fit, by filing a change of registered agent or office statement with the state LLC filing office. It will not be necessary to amend this provision of the Operating Agreement if and when such changes are made.
5.
Business Purpose
The specific business purposes and activities contemplated by the founders of this LLC at the time of initial signing of this agreement consist of the following: This LLC was formed for the purpose of holding a majority partnership interest in S&W Seed Company, a California general partnership.
It is understood that the foregoing statement of powers shall not serve as a limitation on the powers or abilities of this LLC, which shall be permitted to engage in any and all lawful business activities.
6.
Duration of LLC
The duration of this LLC shall be perpetual. This LLC shall terminate when a proposal to dissolve the LLC is adopted by the membership of this LLC or when this LLC is otherwise terminated in accordance with law.
B.
1.
MANAGEMENT PROVISIONS
Management by Managers
This LLC will initially be managed by the two managers listed below.
Name of Manager: Mark S. Grewal
Address: 4408 Hays Drive, Chowchilla, CA 93610
Manager is not an LLC Member.
Name of Manager: Robert W. Lishman
Address: 198 Carlos Avenue, La Selva Beach, CA 95076
Manager is not an LLC Member.
2.
Nonliability of Managers
No manager of this LLC shall be personally liable for the expenses, debts, obligations or liabilities of the LLC, or for claims made against it.
3.
Authority and Votes of Managers
Except as otherwise set forth in this agreement, the Articles of Organization, Certificate of Organization or similar organizational document, or under the laws of the State of Nevada, all management decisions relating to this LLC’s business shall be made by its managers. So long as there are two managers, management decisions shall be approved by the
unanimous decision of all managers. If at a subsequent date, additional managers are added in accordance with the provisions of this Operating Agreement, management decisions shall thereafter be approved by a majority decision of the managers, with each manager entitled to cast one vote for or against any matter submitted to the managers for a decision.
4.
Term of Managers
Each manager shall serve until the earlier of the following events:
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a.
the manager becomes disabled, dies, retires or otherwise withdraws from management;
b.
the manager is removed from office; or
c.
the manager’s term expires, if a term has been designated in other provisions of this Operating Agreement.
Upon the happening of any of these events, a new manager shall be elected by the affirmative vote of a majority in interest of the members.
Any or all managers may be removed, with or without cause, by the vote of a majority in interest of the members at a meeting called expressly for that purpose. Any removal shall be without prejudice to the rights, if any, of the manager under any contract of employment.
Any manager may resign as a manager at any time upon written notice to the LLC, without prejudice to the rights, if any, of the LLC under any contract to which the manager is a party.
Managers may, but need not, be LLC members.
5.
Management Meetings
Managers shall be able to discuss and approve LLC business informally, and may, at their discretion, call and hold formal management meetings according to the rules set forth in the following provisions of this Operating Agreement.
Regularly scheduled formal management meetings need not be held, but any manager may call such a meeting by communicating his or her request for a formal meeting to the other manager(s), noting the purpose or purposes for which the meeting is called. Only the business stated or summarized in the notice for the meeting shall be discussed and voted
upon at the meeting.
The meeting shall be held within a reasonable time after a manager has made the request for a meeting, and in no event, later than 15 days after the request. A quorum for such a formal managers’ meeting shall consist of all managers, and if a quorum is not present, the meeting shall be adjourned to a new place and time with notice of the adjourned
meeting given to all managers. An adjournment shall not be necessary, however, and a managers’ meeting with less than a quorum may be held if all nonattending managers agreed in writing prior to the meeting to the holding of the meeting. All such written consents to the holding of a formal management meeting shall be kept and filed with the records of the
meeting.
The proceedings of all formal managers’ meetings shall be noted or summarized with written minutes of the meeting and a copy of the minutes shall be placed and kept in the records book of this LLC.
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6.
Managers’ Commitment to LLC
Managers shall devote their best efforts and energy working to achieve the business objectives and financial goals of this LLC.
7.
Compensation of Managers
Managers of this LLC may be paid per-meeting or per-diem amounts for attending management meetings, may be reimbursed actual expenses advanced by them to attend management meetings or attend to management business for the LLC and may be compensated in other ways for performing their duties as managers. Managers may work in other
capacities for this LLC and may be compensated separately for performing these additional services, whether as officers, staff, consultants, independent contractors or in other capacities.
B.
1.
MEMBERSHIP PROVISIONS
Non-liability of Members
No member of this LLC shall be personally liable for the expenses, debts, obligations or liabilities of the LLC, or for claims made against it.
2.
Reimbursement for Organizational Costs
Members shall be reimbursed by the LLC for organizational expenses paid by the members. The LLC shall be authorized to elect to deduct organizational expenses and start-up expenditures ratably over a period of time as permitted by the Internal Revenue Code and as may be advised by the LLC’s tax advisor.
3.
Members’ Capital Interests
A member’s capital interest in this LLC shall be computed as a fraction, the numerator of which is the total of a member’s capital account and the denominator of which is the total of all capital accounts of all members. This fraction shall be expressed in this agreement as a percentage, which shall be called each member’s “capital interest” in this LLC.
4.
Membership Voting
Except as otherwise may be required by the Articles of Organization, Certificate of Formation or a similar organizational document, other provisions of this Operating Agreement, or under the laws of the State of Nevada, each member shall vote on any matter submitted to the membership for approval by the managers of this LLC in proportion to the
member’s capital interest in this LLC. Further, unless otherwise stated in another provision of this Operating Agreement, the phrase “majority of members” means a majority of members whose combined capital interests in this LLC represent more than 50% of the capital interests of all members in this LLC, and a majority of members, so defined, may approve any
item of business brought before the membership for a vote.
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5.
Compensation
Members shall not be paid as members of the LLC for performing any duties associated with such membership. Members may be paid, however, for any services rendered in any other capacity for the LLC, whether as officers, employees, independent contractors or otherwise.
6.
Members’ Meetings
The LLC shall not provide for regular members’ meetings. However, any member may call a meeting by communicating his or her wish to schedule a meeting to all other members. Such notification may be in person or in writing, or by telephone, facsimile machine, or other form of electronic communications reasonably expected to be received by a
member, and the other members shall then agree, either personally, in writing, or by telephone, facsimile machine or other form of electronics communication to the member calling the meeting, to meet at a mutually acceptable time and place. Notice of the business to be transacted at the meeting need not be given to members by the member calling the meeting,
and any business may be discussed and conducted at the meeting.
If all members cannot attend a meeting, it shall be postponed to a date and time when all members can attend, unless all members who do not attend have agreed in writing to the holding of the meeting without them. If a meeting is postponed, and the postponed meeting cannot be held either because all members do not attend the postponed meeting or the
nonattending members have not signed a written consent to allow the postponed meeting to be held without them, a second postponed meeting may be held at a date and time announced at the first postponed meeting. The date and time of the second postponed meeting shall also be communicated to any members not attending the first postponed meeting. The
second postponed meeting may be held without the attendance of all members as long as a majority of the capital interests of the membership of this LLC is in attendance at the second postponed meeting. Written notice of the decisions or approvals made at this second postponed meeting shall be mailed or delivered to each nonattending member promptly after the
holding of the second postponed meeting.
Written minutes of the discussions and proposals presented at a members’ meeting, and the votes taken and matters approved at such meeting, shall be taken by one of the members or a person designated at the meeting. A copy of the minutes of the meeting shall be placed in the LLC’s records book after the meeting.
7.
Membership Certificates
This LLC shall be authorized to obtain and issue certificates representing or certifying membership interests in this LLC. Each certificate shall show the name of the LLC and the name of the member, and shall state that the person named is a member of the LLC and is entitled to all the rights granted members of the LLC under the Articles of
Organization, Certificate of Formation or a similar organizational document, this Operating Agreement, and provisions of law. Each membership certificate shall be consecutively numbered and signed by each of the current managers of this LLC. The certificates shall include any additional information considered appropriate for inclusion by the members on
membership certificates.
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In addition to the above information, all membership certificates shall bear a prominent legend on their face or reverse side stating or summarizing any transfer restrictions that apply to memberships in this LLC under the Articles of Organization, Certificate of Formation or a similar organizational document and/or this Operating Agreement, and the
address where a member may obtain a copy of these restrictions upon request from this LLC.
The records book of this LLC shall contain a list of the names and addresses of all persons to whom certificates have been issued, show the date of issuance of each certificate, and record the date of all cancellations or transfers of membership certificates by members or the LLC.
8.
Admission of New Members
Except as otherwise provided in this Operating Agreement, a person or entity shall not be admitted into membership in this LLC unless each member consents in writing to the admission of the new member. The admission of new members into this LLC who have been transferred, or wish to be transferred, a membership interest in this LLC by an existing
member of this LLC is covered by separate provisions in this Operating Agreement.
C.
1.
TAX AND FINANCIAL PROVISIONS
Tax Classification of LLC
The initial sole member of this LLC intends that this LLC be initially classified as a corporation for federal and, if applicable, state income tax purposes. It is understood that all members may agree to change the tax treatment of this LLC by signing, or authorizing the signature of, IRS Form 8832, Entity Classification Election, and filing it with the IRS
and, if applicable, the state tax department within the prescribed time limits.
2.
Tax Year and Accounting Method
The tax year of this LLC shall end on the last day of the month of December. The LLC shall use the accrual method of accounting. Both the tax year and the accounting period of the LLC may be changed with the consent of all members or all managers if the LLC qualifies for such change, and may be effected by the filing of appropriate forms with the
IRS and state tax offices.
3.
Tax Matters Partner
If required under Internal Revenue Code provisions or regulations, this LLC shall designate from among its members a “tax matters partner” in accordance with Internal Revenue Code Section 6231(a)(7) and corresponding regulations, who will fulfill this role by being the spokesperson for the LLC in dealings with the IRS as required under the Internal
Revenue Code and Regulations, and who will report to the members on the progress and outcome of these dealings. Inasmuch as Yellowjacket initially shall be the sole member of the LLC, Yellowjacket shall be designated as the “tax matters partner” and shall remain so designated in the event of the admission of additional members in the future.
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4.
Annual Income Tax Returns and Reports
Within 60 days after the end of each tax year of the LLC, a copy of the LLC’s state and federal income tax returns for the preceding tax year shall be mailed or otherwise provided to each member of the LLC, together with any additional information and forms necessary for each member to complete his or her individual state and federal income tax
returns. This additional information shall include a federal (and, if applicable, state) Form K-1 (Form 1065—Partner’s Share of Income, Credits, Deductions) or equivalent income tax reporting form, as well as a financial report, which shall include a balance sheet and profit and loss statement for the prior tax year of the LLC.
5.
Bank Accounts
The LLC shall designate one or more banks or other institutions for the deposit of the funds of the LLC, and shall establish savings, checking, investment and other such accounts as are reasonable and necessary for its business and investments. One or more persons shall be designated with the consent of all managers to deposit and withdraw funds of the
LLC, and to direct the investment of funds from, into and among such accounts. The funds of the LLC, however and wherever deposited or invested, shall not be commingled with the personal funds of any members or managers of the LLC.
6.
Title to Assets
All personal and real property of this LLC shall be held in the name of the LLC, not in the names of individual members or managers.
D.
1.
CAPITAL PROVISIONS
Capital Contributions by Members
The members have made or shall make the contributions of cash, property or services to the LLC as set forth on Exhibit A attached hereto and incorporated herein by this reference.
2.
Additional Contributions by Members
The members may agree, from time to time by unanimous vote, to require the payment of additional capital contributions by the members, on or by a mutually agreeable date.
3.
Failure to Make Contributions
If a member fails to make a required capital contribution within the time agreed for a member’s contribution, the remaining members may, by unanimous vote, agree to reschedule the time for payment of the capital contribution by the late-paying member, setting any additional repayment terms, such as a late payment penalty, rate of interest to be applied
to the unpaid balance, or other monetary amount to be paid by the delinquent member, as the remaining members decide. Alternatively, the remaining members may, by unanimous vote, agree to cancel the membership of the delinquent member, provided any prior partial payments of capital made
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by the delinquent member are refunded promptly by the LLC to the member after the decision is made to terminate the membership of the delinquent member.
4.
No Interest on Capital Contributions
No interest shall be paid on funds or property contributed as capital to this LLC, or on funds reflected in the capital accounts of the members.
5.
Capital Account Bookkeeping
A capital account shall be set up and maintained on the books of the LLC for each member. It shall reflect each member’s capital contribution to the LLC, increased by each member’s share of profits in the LLC, decreased by each member’s share of losses and expenses of the LLC, and adjusted as required in accordance with applicable provisions of the
Internal Revenue Code and corresponding income tax regulations.
6.
Consent to Capital Contribution Withdrawals and Distributions
Members shall not be allowed to withdraw any part of their capital contributions or to receive distributions, whether in property or cash, except as otherwise allowed by this Operating Agreement and, in any case, only if such withdrawal is made with the written consent of all members.
7.
Allocations of Profits and Losses
Except as otherwise provided in the Articles of Organization, Certificate of Formation or a similar organizational document, or this Operating Agreement, no member shall be given priority or preference with respect to other members in obtaining a return of capital contributions, distributions or allocations of the income, gains, losses, deductions, credits
or other items of the LLC. Except as otherwise provided in the Articles of Organization, Certificate of Formation or a similar organizational document, or this Operating Agreement, the profits and losses of the LLC, and all items of its income, gain, loss, deduction and credit shall be allocated to members according to each member’s capital interest in this LLC.
8.
Allocation and Distribution of Cash to Members
Cash from LLC business operations, as well as cash from a sale or other disposition of LLC capital assets, may be allocated and distributed from time to time to members in accordance with each member’s capital interest in the LLC, as may be decided by a unanimous vote of members.
9.
Allocation of Noncash Distributions
If proceeds consist of property other than cash, the persons authorized in the preceding paragraph to decide on the distribution of cash allocations are authorized to determine the value of such property and allocate this value among the members in accordance with each member’s capital interest in the LLC. If such noncash proceeds are la…
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